The Cayman Islands may soon be required to legally recognize civil partnerships between same-sex couples, according to a senior international human rights professor.
European courts are unlikely to require member states to sanction gay marriage, according to the expert, but they could mandate legal recognition of same-sex unions, affording gay couples many of the same rights as heterosexual married couples.
Speaking to a packed court room in the first of a series of legal lectures organized by the students of the Truman Bodden Law School, Robert Wintemute, of King’s College London, said several Cayman Islands laws were already in breach of the European Convention on Human Rights and could be successfully challenged in court.
He said the higher age of sexual consent for homosexuals, a law restricting group sex for gay people and lack of access to certain rights for couples – including the right for a gay partner to be listed as a dependant for immigration purposes – where all out of step with established rights under the convention.
He said government was “lucky” that no one had yet challenged these laws in court because the government would have lost.
The absence of specific anti-discrimination legislation for homosexuals in the Cayman Islands may also be open to legal challenge in the European courts, he added.
A civil partnership law, allowing same sex couples to register their relationships and conferring most of the rights associated with marriage, is not yet a mandatory requirement for countries governed by the European convention – which includes Cayman because of its relationship with the U.K.
But Mr. Wintemute said a test case in Italy could soon change that – creating a precedent which would apply in the Cayman Islands.
“We’re heading in that direction. If the European Court of Human Rights says Italy has to have it that will mean Cayman Islands too,” he told the Cayman Compass.
“You can’t appeal and say we are the Cayman Islands, we are different, we have a different culture, they will have already taken that into account.”
He said it would be in the country’s best interests to introduce a package of reforms updating its legislation to comply with the European Convention rather than waiting to be challenged in court. And he recommended legislators go one step further and introduce a civil partnership law and anti-discrimination legislation – steps that are not yet required by the convention but could soon become mandatory, depending on the outcome of upcoming cases.
Currently, under Cayman Islands law, it is not an offense for an employer to dismiss a worker or a landlord to deny tenancy to someone because they are homosexual.
Mr. Wintemute said protections under the Cayman Islands Constitution could potentially be cited in court to contest the absence of such legal protections.
The absence of specific reference to homosexuality as grounds for discrimination in the Bill of Rights – a source of controversy and heated debate as a new constitution was being drafted prior to a 2009 referendum – would not stop courts from inferring that right as part of the broad intent of the discrimination clause, Mr, Wintemute believes.
He acknowledged that the courts would be likely to respect the Cayman Islands constitutional definition of marriage as a union between a man and a woman.
But he said that would not extend to denying same sex couples some of the legal protections afforded to married couples. One such right, already established under the convention and therefore guaranteed to Cayman citizens, is the right for same-sex partners to be treated the same as a married couple for immigration purposes. He said the Cayman Islands needed to change its Immigration Law to reflect this or risk having the law amended by the courts following a legal challenge.
A host of other rights, including health benefits and inheritance rights would be conferred by a civil partnerships law that recognized same-sex unions.
“That is an important one because it triggers all kinds of rights and duties. If you don’t have that, you are treated as though you were two friends and your legal situation will be much more complicated,” he added.
Mr. Wintemute urged legislators to be proactive and update their laws to enhance Cayman Islands reputation as an open diversity-respecting offshore banking center.
He acknowledged that if the Cayman Islands lacked the political will to introduce the reforms proactively, it may require individuals to contest them in the courts on a case by case basis.
“It is difficult, if no one brings a case to the court, so there is no pressure from the courts and the political parties don’t see it as a priority, so nothing happens in the legislature.”
Another option, he said, was for the U.K. to introduce an Overseas Territories order updating the legislation – as it did in 2000 to decriminalize homosexual activity in its territories, including the Cayman Islands.
But he said it was preferable from a political and social point of view for the country to have the public debate that accompanied the reforms as that would help engender a more enlightened attitude.
During his presentation, he said the lecture series could be the first step in setting that debate in motion, leading to legal reform.
Advising gay people in the Cayman Islands to follow the words of civil rights lawyer Harvey Milk and “come out, come out, come out,” he said they could change attitudes and challenge prejudice just be being good people.
He said a conservative estimate would be that 2 percent of people in the Cayman Islands were gay.
“You might not know it but they are there and they may be suffering in silence,” he said. “We are not talking about abstract homosexuals out there who are a threat to society; you are talking about your family members and friends and it is discriminations against them, legal and social, which makes them suffer.
“We are starting a discussion in the Cayman Islands which we hope will lead to law reforms that will make life easier for gay people.”
Recommended legal reforms
During his presentation, Professor Wintemute outlined two categories of reforms, which he said the Cayman Islands government, should be looking at.
The first set of reforms, he said, were required for Cayman Islands law, which he said was 14 years behind established case law, to comply with the European convention.
- Lowering the age of consent for homosexual activity from 18 to 16 so it is equal regardless of sexual orientation
- Abolishing other criminal laws that treat same-sex couples differently, including legislation outlawing sexual activity involving more than two persons
- Introducing legislation to prevent public authorities from discriminating against homosexuals in employment and other areas
- Amending legislation to give same-sex couples access to the same legal rights of unmarried different-sex couples
- Amending legislation to give same-sex couples access to specific, important rights of married couples. This would include amending immigration legislation to ensure that same-sex partners of non Caymanians are treated the same as different-sex spouses.
He also outlined a second set of “desirable reforms” for which he said there was currently no clear legal requirement but would help to ensure Cayman remained a modern, welcoming diversity-respecting jurisdiction.
Those reforms include:
- Amending anti-discrimination legislation to add sexual orientation and gender identity as prohibited grounds for discrimination
- Introducing a civil partnership law allowing same-sex couples to register their relationships in the Cayman Islands and acquire most
of the rights of married couples.